The Office of Justice Programsí Implementation of the Hometown Heroes Survivors Benefits Act of 2003

Evaluation and Inspections Report I-2008-005
March 2008
Office of the Inspector General

Background

The Department of Justice (Department) Office of Justice Programs (OJP) administers the Public Safety Officers’ Benefits (PSOB) Program through its Bureau of Justice Assistance (BJA). At the request of several members of Congress, the Office of the Inspector General (OIG) examined the processing of death claims submitted under the PSOB Program for officers who died of heart attacks and strokes. Based on complaints from claimants, the members of Congress expressed concern to the OIG that OJP’s interpretation and application of some program criteria were resulting in a high rate of claims denials.13 In addition, the members raised concerns that OJP’s processing of claims was not timely.

Public Safety Officers’ Benefits Program

In 1976, Congress passed the Public Safety Officers’ Benefits Act creating the PSOB Program to provide death and education benefits to spouses and children of public safety officers who die in the line of duty. In 1990, the PSOB Act was amended to provide disability benefits to officers permanently and totally disabled by an injury incurred in the line of duty. Public safety officers are defined as:

state, local, or federal law enforcement officers;

state, local, or federal firefighters;

rescue squad and ambulance crew members;

chaplains; and

employees of the Federal Emergency Management Agency (FEMA) and employees of state, local, and tribal emergency management and civil defense agencies who work in cooperation with FEMA when performing official, hazardous duties related to a declared major disaster or emergency.

Hometown Heroes Survivors Benefits Act of 2003

The PSOB Program allowed a one-time payment of benefits for deaths involving traumatic injuries caused by an external force, but not for deaths caused by heart attacks or strokes that resulted from line-of-duty activities. To make benefits available to the survivors of public safety officers that die from heart attacks and strokes, Congress enacted the Hometown Heroes Survivors Benefits Act (Hometown Heroes Act) in December 2003.14 This Act amended the PSOB Act to include benefits for the survivors of public safety officers who die of heart attacks or strokes in the line of duty or within 24 hours of a triggering effect while on duty. The Hometown Heroes Act included a statutory presumption that public safety officer s who die from a heart attack or stroke following a “nonroutine stressful or strenuous” physical public safety activity or training died in the line of duty for the program’s purposes. However, under the Act, the statutory presumption that heart attacks or strokes following stressful or strenuous physical activity are line-of-duty-related deaths can be overcome with “competent medical evidence to the contrary.” This means that an officer’s pre-existing medical conditions that contribute to a heart attack or stroke may render the claim for benefits not compensable.

To be eligible for PSOB Program benefits under the Hometown Heroes Act, claimants must provide evidence that all of the following requirements are met:

The decedent was a public safety officer.

The public safety officer died as the direct and proximate result of a heart attack or stroke.

While on duty, the public safety officer either (1) engaged in line-of-duty activity that included law enforcement, fire suppression, rescue activity, hazardous material response, emergency medical services, disaster relief activity, or other emergency response activity or (2) participated in a formal training exercise.

The heart attack or stroke occurred while the public safety officer was engaging in this activity, or participating in this training, or within 24 hours after this activity.15

PSOB Program Regulations

In January 2004, OJP began updating the PSOB regulations to incorporate not only the provisions of the Hometown Heroes Act passed the preceding month, but also 18 other congressional amendments to the program and numerous court decisions over a 30-year period. The updated PSOB Program regulations took effect on September 11, 2006.

OJP’s Definition of Terms From the Hometown Heroes Act

The Hometown Heroes Act used the terms “nonroutine stressful or strenuous” physical activity and “competent medical evidence to the contrary” as criteria for determining whether PSOB claims would be eligible for compensation. OJP defined these terms in developing the PSOB Program implementing regulations. The OJP General Counsel, the primary author of the updated regulations, said he used language from the Hometown Heroes and the PSOB Acts, comments from members of Congress in committee hearings, input from public meetings, and consultations with experts in the public safety and medical fields to develop definitions for these terms. We summarize below the information used by the General Counsel to define the terms.

Nonroutine Stressful and Strenuous Physical Activity

The Hometown Heroes Act states that benefits are available only if heart attacks and strokes occurred under certain circumstances. While t he Hometown Heroes bill was under consideration, members of Congress narrowed the criteria for receiving compensation. For example, on November 21, 2003, House Judiciary Committee Chairman Sensenbrenner stated that the legislation as originally proposed:

[W]as to cover officers who suffered a heart attack or stroke as a result of nonroutine stressful or strenuous physical activity; however, testimony [by public safety officials]... indicated that the legislation as drafted was overboard... it would cover officers who did not engage in any physical activity but merely happened to suffer a heart attack at work.16

According to Chairman Sensenbrenner, amendments to the bill were proposed, and eventually adopted, to address this concern and create a presumption that:

[A]n officer who died as a direct and proximate result of a heart attack or stroke died as a direct and proximate result of a personal injury sustained in the line of duty if: (1) that officer participated in a training exercise that involved nonroutine stressful or strenuous physical activity or responded to a situation and such participation or response involved nonroutine stressful or strenuous physical law enforcement, hazardous material response, emergency medical services, prison security, fire suppression, rescue, disaster relief or other emergency response activity; (2) that officer suffered a heart attack or stroke while engaging or within 24 hours of engaging in that physical activity; and (3) such presumption cannot be overcome by competent medical evidence.17

The amendments excluded activities of a “clerical, administrative, or non-manual nature” and listed examples:

sitting at a desk;

typing on a computer or talking on the telephone;

reading or writing paperwork or other literature;

watching a police or corrections facility’s monitors of cells or grounds;

involvement in a physical struggle with a suspected or convicted criminal;

performing a search and rescue mission;

performing or assisting with emergency medical treatment;

performing or assisting with fire suppression;

involvement in a situation that requires either a high-speed response or pursuit on foot or in a vehicle;

participation in a hazardous material response;

responding to a riot that broke out at a public event; and

physically engaging in the arrest or apprehension of a suspected criminal.19

The amendments and examples listed above subsequently were incorporated into the Hometown Heroes Act that was passed by both Houses and signed into law. According to the General Counsel, OJP used the list of examples of ineligible activities provided by Congress in comments as guidance for devising the PSOB Program regulations and claims review process.

In the final regulations for the PSOB Program, OJP defined the term “nonroutine stressful or strenuous physical activity ” as:

Nonroutine stressful physical activity means activity that is not performed as a matter of routine (routine means that the level of stress is routine and not simply that the activity itself is performed with some regularity) and entails non-negligible physical exertion.

For line-of-duty activity, it means activity that poses or appears to pose significant threats or hazards or involves reasonably foreseeable risks of such threats or hazards and provokes or causes an unusually high level of alarm, fear, or anxiety.

For training exercises, it means training that realistically simulates significant threats or hazards and provokes or causes an unusually high level of alarm, fear, or anxiety.

Nonroutine strenuous physical activity means activity that is not performed as a matter of routine (routine means that the level of physical exertion is routine and not simply that the activity itself is performed with some regularity) and entails an unusually high level of physical exertion.20

Nonroutine stressful or strenuous physical activity specifically does not include actions of a “clerical, administrative, or nonmanual nature.”21

Competent Medical Evidence to the Contrary

Another term OJP defined was “medical evidence to the contrary.” Under the Act, “medical evidence to the contrary” could override the presumption that a death from stroke or heart attack occurring within 24 hours of non-routine stressful activities was caused by line-of-duty activities. OJP’s General Counsel said he consulted with the Armed Forces Medical Examiner from the Armed Forces Institute of Pathology (AFIP) to help define the term and develop the criteria OJP would use to determine if “competent medical evidence to the contrary” was present that could exclude a claimant from receiving benefits.22 According to the General Counsel, the goal was to craft a definition that would be medically sound yet usable in the PSOB claims determination process.23

After consulting with the AFIP, OJP included in the proposed regulations several criteria with enumerated risk factors that would help it determine if factors other than the physical activity engaged in in the line of duty (for example, coronary heart disease or obesity) caused the heart attack or stroke. OJP received comments on the proposed regulations objecting to the inclusion of such criteria in the proposed regulations. These comments led OJP to replace its proposed risk-based criteria in the final PSOB regulations with an approach that considers whether the decedent had taken the necessary steps to treat known medical conditions that may lead to a heart attack or stroke, such as by taking medications for high blood pressure or high cholesterol. The AFIP advised OJP that a pathologist would need 10 years of medical records to provide a complete picture of a person’s medical history and actions taken to address medical issues related to heart attacks or strokes.

PSOB Claims Process

Submitting a PSOB Claim Under the Hometown Heroes Act

The PSOB Program is a claims program with eligibility and evidentiary requirements for establishing entitlement to benefits. The Hometown Heroes Act includes the same evidentiary requirements for heart attacks and strokes as for traumatic injury deaths (such as shooting deaths or asphyxiations in a fire). Moreover, it requires additional documentation to prove that the officer engaged in non-routine stressful or strenuous physical activity or training that directly or proximately caused the heart attack or stroke. Under the PSOB Act, the claimant is responsible for providing OJP with evidence that demonstrates that the claim meets the criteria of the program and is compensable.

Claimants apply for PSOB Program compensation by filling out a claim application form (see Appendix II for claim forms) and working with the public safety agency in which the officer served to obtain other required documentation and evidence. The claimant, independently or through the public safety agency, submits the following supporting documentation for a death claim under the Hometown Heroes Act:

PSOB Report of Public Safety Officer’s Death form completed and signed by the head of the public safety agency;

detailed statement of circumstances from the initiation of the incident to the pronouncement of the officer’s death;

investigation, incident, or accident reports;

death certificate;

autopsy report or a statement signed by the head of the public safety agency or the medical examiner explaining that no autopsy was performed;

toxicology report or a statement signed by the head of the public safety agency or the medical examiner explaining that no analysis was performed;

a detailed statement listing all of the officer’s on-duty actions during the 24-hour period prior to the onset of the heart attack or stroke; and

10 years of medical records related to the officer’s health (optional).

The claimant also is required to submit information about beneficiaries so that, if the claim is approved, OJP can determine who should receive compensation.24 The following documents are requested from the claimant to assist OJP in establishing beneficiaries:

current marriage certificate;

divorce decrees for all the officer’s and current spouse’s previous marriages, including references to physical custody of children;

death certificates for all the officer’s and current spouse’s previous marriages if ending in death;

birth certificates for all of the officer’s surviving children, regardless of age or dependency; and

for each stepchild, a statement of a parent-child relationship.

Claimants can submit claim applications and any accompanying documents to the PSOB Office by mail, facsimile, or online through the BJA website.

Processing PSOB Claims

The BJA’s PSOB Office receives PSOB death, disability, and education assistance claim applications; ensures claims are complete (which includes reviewing the documents submitted by the claimant and public safety agency and contacting claimants for additional documentation and information); and makes initial determinations of whether claims are compensable and should be approved. The PSOB Office then sends the claim applications and draft determinations to OJP OGC, which conducts a second review to identify any legal issues. Both the BJA and OJP OGC must concur on the claim determination based on the evidence submitted by a claimant and the public safety agency.25

If a claim is approved, the PSOB Office sends a letter notifying the claimant and simultaneously submits a request for payment to the U.S. Department of the Treasury. If a claim is denied, the PSOB Office sends a notification to the claimant that includes the reasons for the denial and information on the appeals process. Claimants can appeal denied PSOB claims through three levels: Hearing Officers, the BJA Director, and the federal courts. During a hearing, the claimant has the opportunity to present new or additional evidence and call witnesses. See Appendix III for a description of the appeals process.

From December 2003 to November 29, 2007, the PSOB Office received a total of 291 PSOB death claims submitted under the Hometown Heroes Act.26 The PSOB Office issued the first determination for a Hometown Heroes Act claim on December 6, 2006, and as of November 29, 2007, had made decisions on 112 claims (65 denials and 47 approvals), paying out $12,889,452. The amount of the one-time death benefit, currently $303,064, is determined by the date of the public safety officer’s death.27 Appendix IV presents demographic information from the completed Hometown Heroes Act claims.

Figure 1 on the next page shows the PSOB claims review process and Appendix V outlines the staffing, positions, and duties of each office working on the PSOB Program.

Figure 1: PSOB Claims Review Process

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Footnotes

The criteria were “nonroutine stressful and strenuous physical activity” and “competent medical evidence to the contrary.”

See Appendix I for the text of the Hometown Heroes Survivors Benefits Act of 2003.

The AFIP is an agency of the Department of Defense that provides pathology consultation, education, and research to the federal government. The AFIP has over 820 employees, including over 120 pathologists and other scientists.

OJP uses the term “determination” to mean the written decision that outlines the facts of the public safety officer’s activities and death, a statement of whether the claim is approved or denied, and the reasoning for the decision.

The PSOB Program beneficiary hierarchy is: (1) a surviving spouse or eligible children, if no surviving spouse or eligible children then, (2) the individual designated as beneficiary by the public safety officer at their agency or organization, (3) the individual designated as the beneficiary on the most recently executed life insurance policy, and (4) if the officer has no beneficiary listed on an insurance policy, the surviving parents. See 42 U.S.C. § 3796(a)(4).

OJP Instruction I 1310.72B, Redelegation of Authority to the Head of the Public Safety Officers’ Benefits Program (PSOB), April 4, 2001.

The BJA received a total of 299 PSOB death claims submitted under the Hometown Heroes Act, but 6 claims were for deaths that were determined not to be heart attacks or strokes and therefore not eligible under the Act, 1 claim did not have evidence that the cause of death was a heart attack or stroke, and 1 claim was withdrawn before final processing. All eight of those claims were received prior to the effective date of the final PSOB Program regulations on September 11, 2006, and were not included in the data analysis for this report. Additionally, the BJA does not count claims that were denied because the decedent was not a public safety officer in the totals for PSOB death claims submitted under the Hometown Heroes Act. We included those claims in our analysis because the BJA processed them like other Hometown Heroes Act claims.

All approved claims are awarded the entire amount of the benefit. Since October 15, 1988, the benefit has been adjusted each year on October 1 to reflect the percentage of change in the Consumer Price Index.